Bills Digest no. 8, 2016–17
PDF version [650KB]
Christina Raymond
Law and Bills Digest Section
13
September 2016
Contents
Purpose of the Bill
Structure of the Bill
Relationship to other Bills
Background
Contemporary use of statute law
revision Bills
Development of statute law revision
legislation
First Parliamentary Counsel’s
editorial powers under the Legislation Act 2003
Decision-making about the mechanism
for making editorial changes to an Act
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Schedule 1—Principal Acts
Schedule 2—Amending Acts
Schedule 3—References to Ministers
and departments
Schedules 4 and 5—Repeals
Improving transparency in
decision-making about mechanisms for making editorial changes
Concluding comments.
Date introduced: 1
September 2016
House: House of
Representatives
Portfolio: Attorney-General
Commencement: Sections
1-3 will commence on the day of Royal Assent. Schedules 1, 3, 4
and 5 will commence 28 days after Royal Assent. The commencement
dates for the proposed amendments to the provisions of amending Acts in Schedule 2 are tied to the commencement dates for the relevant
amending Acts.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at September 2016.
Purpose of
the Bill
The Statute Law Revision (Spring 2016) Bill 2016 makes minor
amendments to 20 statutes to correct various technical errors as a result of
drafting and clerical mistakes, and to update some expressions to accord with
contemporary drafting practice.[1]
The Bill also repeals spent or obsolete provisions in two Acts, and one
spent amending Act.[2]
The Government has stated that the proposed amendments
would not, if enacted, change the substance of the law.[3]
In particular, it stated that the proposed ‘error correction’ amendments would
bring the text of the relevant legislation into line with how it would be
interpreted by a court, via the application of the so-called ‘slip rule’ of
interpretation. This rule is said to enable relevant provisions which contain
drafting errors to be read in their correct form despite the errors.[4]
Structure
of the Bill
The Bill makes the following amendments in five schedules:
- correcting
minor drafting errors and modernising language used in offence provisions in 15 principal Acts
(Schedule 1)
- correcting
misdescribed amendments in four amending Acts (Schedule 2)
- substituting
references to specific Ministers and Departments in one principal Act with
generic references, to remove the need to rely on ‘substituted reference
orders’ made under the Acts Interpretation Act 1901 as a result of
machinery of government changes (Schedule 3)
- repealing
spent and obsolete provisions of two primary Acts (Schedule 4)
- repealing
a spent amending Act (Schedule 5).
Relationship
to other Bills
Bills introduced
in the 44th Parliament
This Bill contains measures that were introduced in two Bills
that lapsed in the 44th Parliament—the Statute
Law Revision Bill (No. 2) 2016 (No. 2 Bill)[5]
and the Statute
Law Revision Bill (No. 3) 2016 (No. 3 Bill).[6]
The No. 2 Bill was introduced on 17 March 2016 and lapsed
at prorogation on 15 April 2016. With the exception of one measure, it is
identical to Statute Law Revision (Spring 2016) Bill 2016.[7]
Schedule 1 of the No. 2 Bill was re-introduced as the Statute
Law Revision Bill (No. 3) 2016 (No. 3 Bill) upon the commencement of the second
session of the 44th Parliament on 18 April 2016.[8]
The No. 3 Bill lapsed at dissolution of the Parliament on 9 May 2015. It was a
type of Bill known as a ‘formal Bill’ or a ‘privilege Bill’, introduced by the
Prime Minister on the opening of the second session.
The House of Representatives has adopted a traditional
practice of the United Kingdom upon the opening of a new Parliament, or new session
of a Parliament. Standing Order 6(a) provides that ‘before the
Governor-General’s speech is reported, some formal business shall be transacted
and the Prime Minister may announce his or her Ministry’.[9]
According to House of Representatives Practice:
Business which has preceded the reporting of the speech also
includes announcements by the Prime Minister of other government party
appointments and by the leaders of the other parties informing the House of
their party appointments. A non-contentious bill, known as the ‘formal’ bill or
‘privilege’ bill, is then presented, usually by the Prime Minister. The bill is
read a first time and the second reading made an order of the day for the next
sitting. The order of the day is placed on the Notice Paper and nowadays
remains the last item of government business throughout the session, the bill
lapsing at prorogation or dissolution.
There is no prescribed or traditional form or title for the
‘privilege’ bill. In earlier times the ‘privilege’ bill has been passed into
law, although it was customary not to proceed beyond the first reading stage
before consideration of the Governor-General’s speech. However, in recent times
it has been the practice for the ‘privilege’ bill not to proceed beyond the
first reading stage even after consideration of the Governor-General’s speech.
Although the ‘privilege’ bill is not proceeded with, its provisions may be
incorporated in another bill introduced and passed later in the Parliament.[10]
Bills introduced
in the 45th Parliament
The Government introduced the Statute Law Revision (Spring
2016) Bill in the same sitting week as the Statute Law
Revision Bill 2016[11]
and the Statute
Update Bill 2016.[12]
Statute Law Revision Bill 2016
The Statute Law Revision Bill 2016 is a ‘formal Bill’ or a
‘privilege Bill’, introduced by the Prime Minister upon the opening of the 45th
Parliament on 30 August 2016.[13]
It duplicates the provisions of Schedule 1 to the Statute Law Revision (Spring
2016) Bill. This duplication of content, combined with the fact that the formal
Bill has not been read a second time, tends to suggest that it may not proceed,
consistent with the custom described in House of
Representatives Practice (extracted above).
Statute Update Bill 2016
The Government introduced the Statute Update Bill 2016 at
the same time as the Statute Law Revision (Spring 2016) Bill on 1
September 2016.[14]
The Statute Update Bill is also aimed at improving the accuracy and currency of
Commonwealth legislation. It reintroduces a Bill of the same short title that
was introduced in the 44th Parliament on 17 March 2016 and lapsed at
prorogation.[15]
It focuses on updating drafting expressions to take account of developments to
drafting precedents and practices.[16]
The Government explained that the Statute Update Bill has
been introduced separately to the Statute Law Revision Bill because some of its
proposed amendments ‘may make minor changes’ to the substance and legal effect
of the relevant provisions and are therefore ‘not considered appropriate for
inclusion in a Statute Law Revision Bill’.[17]
Background
Statute law revision Bills are an established feature of
Commonwealth legislative practice. Bills of this kind are introduced
periodically to address purely formal issues in legislation, including correcting
errors, making other editorial changes such as modernising drafting style, and repealing
spent legislation.[18]
The first Statute Law Revision Bill was introduced and
enacted in 1934.[19]
The Attorney-General at that time, John Latham (subsequently the
fifth Chief Justice of the High Court of Australia) explained the object of the
inaugural Bill in the following terms:
There is an obligation resting upon the Government of the
Commonwealth, and upon this Parliament, to present the statute law of the
Commonwealth in a convenient, accessible and readily intelligible form. We try
to do that as the legislation is drafted, and as it is passed through
Parliament from time to time; but as the years go by it becomes evident that
there is a great deal of obsolete matter on the statute-book. The object of
this Bill is merely to cut away the dead wood on the statute-book.[20]
Contemporary
use of statute law revision Bills
Successive governments and parliaments have respectively
introduced and enacted statute law revision Bills on a routine basis. They have
acknowledged the value of such legislation in improving the accuracy,
useability and currency of Commonwealth Acts.[21]
The Legislation Handbook
produced by the Department of the Prime Minister and Cabinet describes the
contemporary purpose of statute law revision Bills in the following way:
A Statute Law Revision Bill makes technical amendments to a
number of Commonwealth Acts. The amendments included in such a bill deal only
with tidying up, correction of errors, updating (including modernisation of
style) and repeal of spent legislation. No proposals involving changes of
policy will be included in a Statute Law Revision Bill.[22]
This description is consistent with the traditional
assumption courts have applied to the interpretation of statute law revision
legislation. According to two leading commentators, DC Pearce and RS Geddes,
courts usually take the approach of ‘assuming that statute law revision Acts
are not intended to change the substance of the law’ but rather ‘tidy up the
statute book’.[23]
As such, Pearce and Geddes suggest that courts are normally ’slow to infer that
a change of substance has been made to an Act where an alternative
interpretation not changing the previous operation of the Act is tenable’.[24]
However, Pearce and Geddes sound the following caution
with respect to the interpretation of Commonwealth statute law revision
legislation, which also underscores the importance of thorough Parliamentary
scrutiny of such Bills:
The assumption that statute law revision Acts are not
changing the law should no longer be considered appropriate in relation to
Commonwealth legislation. It is common to find substantial statute law revision
Acts being made that contain what are claimed to be non-controversial
amendments. Whether this description is apt in all cases is questionable, but
in any case there is no doubt that the amendments contained in the Acts are
intended to make substantive changes to many Acts and not simply to tidy them
up.[25]
According to the Legislation Handbook,
which was last updated in 2000, statute law revision Bills are prepared
infrequently and ‘usually only during an election period’.[26]
However, recent practice suggests that they are used more regularly.
For example, a search of the Federal
Register of Legislation (FRL)[27]
in September 2016 indicates that the Parliament has enacted at least one
statute law revision Bill, or a statute law stocktake Bill, each year since
2002. In the 44th Parliament, statute law revision Bills were introduced as
part of the Government’s regular ‘Repeal Day’ package aimed primarily at
reducing so-called ‘regulatory red tape’.[28]
Development
of statute law revision legislation
The Office of Parliamentary Counsel (OPC)[29]
is responsible for preparing statute law revision Bills.[30]
OPC plays a significant role in identifying editorial and other technical
matters suitable for inclusion in such Bills, in addition to drafting the
relevant amendments.[31]
First Parliamentary Counsel (FPC) is authorised to approve
the inclusion of such measures in appropriate amending Bills.[32]
Depending on the Government’s legislative program during a particular Parliamentary
sitting period, statute law revision-type amendments may be included in other Government
Bills proposed for introduction. This might include, for example, Bills that
propose to make substantive amendments to the relevant Acts or related Acts; or
‘portfolio Bills’ that propose various, minor amendments to a range of legislation
administered by a particular portfolio.[33]
As explained below, statute law revision Bills, or other
Bills containing statute law revision-type amendments, are not the only vehicle
for making editorial and other minor amendments to the text of an Act.
First
Parliamentary Counsel’s editorial powers under the Legislation Act 2003
The Legislation Act
2003 was amended in 2015 to authorise FPC to make minor editorial and
presentational changes to the text of an Act in preparing a compilation[34]
for registration on the FRL.[35]
These amendments commenced on 5 March 2016.[36]
In particular, section 15V of the Legislation Act authorises FPC to make an
editorial change to the text of an Act in the course of preparing a compilation
of the Act for registration on the FRL.[37]
This power is exercisable only if FPC considers that the change is desirable to
bring the Act or instrument into line with, or more closely into line with,
legislative drafting practices of OPC; or to correct an error or a misdescribed
amendment.[38]
The relevant changes must not alter the legal effect of the legislation.[39]
The term ‘editorial change’ is defined in section 15X,
which prescribes the amendments FPC is permitted to make under section 15V. In
broad terms, these include matters of spelling, punctuation, grammar and
syntax, gender references, cross-references to other Acts or instruments, and
numbering (among other matters).[40]
They include the correction of errors in relation to such matters.[41]
Editorial changes made by FPC under section 15V have effect
as though they were made by legislative amendments to the original Act, with
effect from the date on which the relevant compilation of the Act is registered
on the FRL.[42]
FPC is required to include a note on the FRL identifying any editorial changes
made, including a brief outline of those changes in general terms.[43]
The Government has indicated that OPC will also include information about
editorial corrections in its annual reports.[44]
Decision-making
about the mechanism for making editorial changes to an Act
The statute law revision Bills introduced into the 44th
and 45th Parliaments in 2016—including the present Bill—are the first statute
law revision legislation to be introduced after the commencement of the ‘editorial
change’ powers in the Legislation Act. This
raises the question of how the two mechanisms will interact in practice.
It is evident that statute law revision legislation and
FPC’s editorial change powers under the Legislation
Act can cover the same type of subject matter. For the reasons explained
below, it is not entirely clear when one of these mechanisms will be applied
(or ought to be applied) in preference to the other.
Overlap of statutory and
administrative mechanisms
In the course of introducing the 2015 amendments to the Legislation Act, the Government acknowledged that ‘most
amendments in the Statute Law Revision Bills routinely prepared by the OPC
would be able to be made by the editorial change powers’[45]
and indicated that FPC’s editorial power was intended to ‘conserve limited
parliamentary time and other resources’.[46]
The Government stated that FPC would release further guidance about ‘cases in
which it would be appropriate to use the [editorial change] power’.[47]
OPC’s Drafting Direction No.
4.4
On 29 February 2016, FPC issued Drafting Direction No. 4.4—Changes using FPC's editorial
powers and statute law revision amendments. The Direction states that
FPC’s editorial change power should be used ‘sparingly’.[48]
The Direction identifies the following editorial changes
in section 15X of the Legislation Act as
being ‘the kinds of changes that will most commonly be made under [FPC’s
editorial correction power] in section 15V’.[49]
(a) changes in spelling (such as
replacing “authorize” with “authorise”—see paragraph 15X(2)(a));
(b) changes in punctuation that do not
affect the meaning (such as replacing “income year.” with “income year;”—see
paragraph 15X(2)(a));
(c) correcting obvious grammatical
errors (such as replacing “A a permanent” with “A permanent”—see paragraph
15X(2)(a));
(d) adding a conjunction (so that each
paragraph ends with the same conjunction) (see paragraph 15X(2)(a));
(e)
changing the short title of an Act
(such as changing the Air Accidents (Commonwealth Liability) Act 1963 to
the Air Accidents (Commonwealth Government Liability) Act 1963—see
subparagraph 15X(2)(b)(i) and paragraph 15X(2)(c));
(f) changing a reference to a person,
body or other entity (such as replacing “Public Service Commissioner” with
“Australian Public Service Commissioner”—see subparagraph 15X(2)(b)(ii));
(g) making minor changes to numbering
(such as relettering paragraph (f) as paragraph (da)—see paragraph 15X(2)(d));
(h) changing the order of definitions
(see paragraph 15X(2)(e));
(i) removing a definition that is not
used (see paragraph 15X(2)(k));
(j) removing a reference to a provision
where the provision no longer exists (see paragraphs 15X(2)(k) and (p) and
subsection 15X(4));
(k)
incorporating a misdescribed
amendment (such as by omitting “the making of claims” from a compilation where
the amending Act or instrument directed “making claims” be omitted—see
paragraph 15X(2)(o));
(l) correcting an error in a cross
reference where there is no doubt as to the cross reference being referred to
(see paragraphs 15X(2)(p) and (4)(c)).[50]
The Direction further states that amendments of the
following kind should be included in an amending Bill (such as a statute law
revision Bill), or are generally more appropriately done via such a Bill:
- Consequential amendments that are
required to be made as a result of changes made by a Bill, such as when the
name of an Act is changed.[51]
- Repealing redundant provisions
(other than definitions) and Acts.[52]
The Direction sets out a process by which OPC’s drafting,
editorial and publications staff may identify mistakes in Acts (or instruments)
and notify them to a ‘designated drafter’ within OPC. The designated drafter
then makes a recommendation to FPC about the appropriate form of remedial
action from among FPC’s editorial power, the inclusion of amendments in a statute
law revision Bill, or in another kind of Bill.[53]
The Direction states that ‘FPC will then decide which of those three approaches
should be adopted’[54]
but does not prescribe the matters, or provide an indication of the types of
matters, that FPC must or may take into account in making this decision, beyond
the general identification of changes that will commonly be made via section
15V (quoted above).
Committee
consideration
At its meeting on 1 September 2016, the Senate Standing
Committee for the Selection of Bills deferred its consideration of the Bill to
its next meeting.[55]
The Senate Standing Committee for the Scrutiny of Bills has
not made any comment on the Bill to date. The Committee considered the No.
2 Bill and the No. 3 Bill and indicated that it had no comment.[56]
Policy
position of non-government parties/independents
Non-government parties and independents do not appear to
have commented publicly on the Bill to date.
Position of
major interest groups
Major interest groups do not appear to have commented
publicly on the Bill to date.
Financial
implications
The Explanatory Memorandum states that the Bill will have
no financial impact.[57]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
(Cth), the Government has assessed the Bill’s compatibility with the human
rights and freedoms recognised or declared in the international instruments
listed in section 3 of that Act. The Government considers that the Bill is
compatible.[58]
In particular, the Government has stated that the Bill
does not engage any of the applicable rights or freedoms because it does not
change the legal substance or effect of the provisions which are the subject of
the proposed amendments.[59]
As discussed in the ‘key issues and provisions’ section of this Bills Digest, this
statement appears to be an accurate description of the proposed amendments in
the Bill.
Parliamentary Joint Committee
on Human Rights
The Parliamentary Joint Committee on Human Rights has not
made any comment on the Bill to date. The Committee considered that the
No. 2 Bill and the No. 3 Bill and did not raise human rights concerns.[60]
Key issues
and provisions
Schedule
1—Principal Acts
Schedule 1 to the Bill contains proposed amendments to 15
principal Acts,[61]
which generally correct drafting errors of the following kind:
- incorrect
cross-references to other provisions[62]
- incorrect
citations of the short titles of Acts and international conventions[63]
- grammatical,
spelling and other typographical errors (for example, incorrect capitalisation,
a missing heading, redundant words due to duplication, an incorrect reference
to the Federal Circuit Court as the Federal Magistrates Court)[64]
and
- errors
in the numbering of provisions (such as incorrectly identifying paragraphs in a
subsection as separate subsections).[65]
Schedule 1 also amends the language used in a provision
conferring a power of arrest in subsection 100(1) of the Excise Act 1901
to accord with contemporary drafting practice.
[66]
Currently, the provision authorises the warrantless arrest of a person, if the
arresting officer ‘has reasonable cause to believe’ that the person ‘is guilty
of’ certain offences against the Excise Act.
Item 18 omits the phrase ‘is guilty of’ and substitutes the contemporary
expression ‘has committed the offence of’. The Explanatory Memorandum
indicates that this drafting practice ‘recognises that it is the role of courts
to find persons guilty of an offence’[67]
as was recognised by the High Court in Polyukhovich v Commonwealth (1991).[68]
The amendments in Schedule 1 will commence 28 days after
Royal Assent.[69]
The Explanatory Memorandum states that this is because the so-called ‘slip
rule’ of interpretation will have been applied to each error, with the result
that the proposed amendments merely correct the text of each principal Act
rather than change the legal effect of the relevant provisions.[70]
This is consistent with the guidance provided in OPC’s Drafting Direction No. 4.4,
which states that the ’basic principle’ for statute law revision amendments
‘is that the amendments should commence 28 days after Royal Assent to the
Statute Law Revision Act’.[71]
Schedule 2—Amending
Acts
Schedule 2 to the Bill contains proposed amendments to
four amending Acts[72]
to fix misdescribed amendments. These misdescriptions include:
- the
omission of a provision containing the relevant amending instruction (for
example, ‘repeal the paragraph, substitute:’)[73]
- typographical
errors in amending instructions and other provisions, such as:
- an
incorrect reference to the relevant provision to be amended (for example, the
wrong provision number or a grammatical error in transposing the relevant
provision)[74]
- an
incorrect citation of the short title of another Act (for example, in a
citation in a commencement provision, where the commencement date is tied to
the commencement of the Act cited).[75]
Each item in Schedule 2 commences immediately after the
commencement date for the relevant provision of the corresponding amending Act.[76]
As all of the amending Acts have commenced, the amendments in Schedule 2 have
retrospective application. This approach is consistent with the general
principle set out in Drafting Direction No. 4.4 for the commencement of
misdescribed amendments in amending Acts.[77]
This approach ensures that the correct form of amendment has effect from the
date on which the relevant amending Act commenced. Applying a prospective
commencement date—for example, upon the provision of Royal Assent to the Statute
Law Revision Act—would create a risk that the misdescribed amendments in
the amending Acts would have been in force until the corrections contained in
the present Bill (if enacted) commenced. Hence, the amending Act may have been
rendered ineffective in the interim period.
Schedule 3—References
to Ministers and departments
Part 1 of Schedule 3 to the Bill amends provisions
of the Public
Lending Right Act 1985.[78]
The measures in items 1-3 will place in primary legislation certain
amendments that were made in September 2015 via a type of legislative
instrument (known as a ‘substituted reference order’) made under
subsection 19B(2) of the Acts Interpretation
Act 1901.[79]
Subsection 19B(2) relevantly provides that a ‘substituted reference order’
has the effect of amending provisions of primary legislation referring to
particular Ministers or departments in certain circumstances, including in the
event of machinery of government changes.[80]
In particular, the measures in Schedule 3 omit certain references
in the Public Lending Right Act to a named
portfolio Minister and Department (namely, the Attorney-General and the
Attorney-General’s Department) and substitute them with references to ‘the Minister
administering the Copyright Act 1968’ and ‘the Department administered
by the Minister administering the Copyright Act
1968’.[81]
This consolidates in primary legislation amendments made via a substituted
reference order on 26 November 2015, to reflect the transfer of
certain portfolio responsibilities from the Attorney-General to the Minister
for Communications with respect to the administration of the Copyright Act
1968.[82]
As such, the amendments made by Schedule 3 will not change
the legal effect of the provisions of the Public Lending Right Act, but
rather will ensure that the reader can ascertain the meaning of these
provisions without needing to separately consult the relevant substituted
reference order. Accordingly it serves to enhance the transparency and
usability of the relevant legislation.[83]
Part 2 of Schedule 3 contains transitional, saving
and application provisions (items 4 and 5) which ensure the validity
of things done before the commencement of the amendments.
The amendments in Part 1 and Part 2 of Schedule 3 commence
28 days after Royal Assent.[84]
This is consistent with the general principle for the commencement of statute
law revision amendments set out in Drafting Direction No. 4.4 (as discussed
above in relation to Schedule 1 to the Bill).
Schedules 4
and 5—Repeals
Schedule 4 provides for the repeal of spent and
obsolete provisions of two Acts:
- spent
provisions of the International Labor Organisation (Compliance with
Conventions) Act 1992 which made amendments to other Acts[85]
and
- provisions
of the National Health Act 1953 which authorised the making of, and
supported the implementation of or otherwise relied upon,
a Ministerial determination that was subject to a statutory sunset
clause and ceased to have force in 2010.[86]
Schedule 5 repeals the Forestry Marketing and
Research and Development Services (Transitional and Consequential Provisions)
Act 2007 (FMRDS (TCP) Act), which is spent because the amendments it
made happened upon the commencement of the relevant amending provisions.[87]
Section 7 of the Acts Interpretation Act will operate to ensure that the
repeal of the amending Act does not affect the principal Act as amended. Item
2 of Schedule 5 to the Bill also enacts a saving provision to ensure that
the repeal of the amending Act will not affect the continuing operation of any
application, saving or transitional provision made by the amending Act.[88]
The proposed amendments in Schedules 4 and 5 commence 28
days after Royal Assent, which is consistent with the general principle
outlined in Drafting Direction No. 4.4 (as discussed
under Schedule 1 above).
By way of a general observation about the need for
amendments of the kind proposed to be made by Schedules 4 and 5 to the
Bill, there is no provision in Commonwealth ‘adjectival laws’ such as the Legislation Act for the automatic repeal of
amending Acts. Hence, they remain on the statute book unless and until they are
repealed by another Act, such as a statute law revision Act[89]
or a dedicated Act for the ‘bulk repeal’ of amending legislation.[90]
This stands in contrast to the provisions in the Legislation
Act for the automatic repeal of legislative instruments.[91]
It also stands in contrast to the arrangements adopted in other Australian
jurisdictions, including the ACT[92]
and Queensland,[93]
which have enacted legislation that automatically repeals their respective
amending Acts, once those Acts have fulfilled their purpose.
Improving
transparency in decision-making about mechanisms for making editorial changes
Areas of uncertainty and
limited transparency
It is not entirely clear in which circumstances FPC will
determine to exercise his or her power under section 15V of the Legislation Act to make editorial corrections to
the text of an Act, and when he or she will recommend that to the Government
that measures should be included in a statute law revision Bill, or in a Bill
of another kind.
OPC’s Drafting Direction No. 4.4
provides some guidance by identifying the types of editorial changes that FPC
considers will most commonly be made using the editorial correction power in
section 15V. It also identifies some changes that should normally be made via
statute law revision (or other) legislation. However, several types of editorial
changes could potentially be made via either mechanism, and the Drafting
Direction does not provide information about how decisions are to be made in
these circumstances.
While there is an understandable need to ensure that FPC
has flexibility in exercising his or her discretion about the use of section
15V in particular cases, there seems to be some uncertainty about how the
general approach outlined in the Direction will be applied in practice. This
may risk creating a perception of inconsistency or arbitrariness in
decision-making.
For example, several error correction measures in Schedules
1 and 2 to the present Bill appear to be editorial changes covered by section
15X that could be made via section 15V. Several of these measures also appear
to be changes of the kind contemplated by the Direction as being those that
will most commonly be made using FPC’s power in section 15V. These include
proposed amendments fixing incorrect cross-references to other provisions and
citations of the short-titles of other Acts, typographical and grammatical
errors (such as incorrect spelling, capitalisation and repeated words) and
numbering errors.
The Explanatory Memorandum does not explain why these
measures were dealt with as proposed statute law revision amendments, and were
evidently not considered to be appropriate for editorial changes under section 15V.
Further, the reports OPC has issued about FPC’s use of the editorial changes
power in section 15V indicate that this power has been used to make changes to
other Acts, which are of a similar kind to the changes proposed in the Bill.[94]
In the abstract, it seems difficult to reconcile the different approaches taken
to apparently similar types of amendments. The reasons for this differential
treatment are not immediately apparent on the face of the relevant provisions,
or from the nature of the subject matter regulated by the relevant Acts.
Opportunity for improvement
It would be beneficial if explanatory memoranda
accompanying future statute law revision Bills contained a brief explanation of
why the proposed amendments were not considered suitable for editorial changes
under section 15V of the Legislation Act,
where they fall within the definition of an ‘editorial change’ in section 15X
of that Act. The inclusion of information about the approach taken to selecting
the appropriate vehicle for making editorial changes in such circumstances could
help strengthen transparency and Parliamentary oversight.
This could help build a common understanding (and
potentially consensus) about the circumstances in which a measure is considered
appropriate for Parliamentary approval via a statute law revision Bill; and the
circumstances in which a measure is more appropriately dealt with as an
editorial change under the Legislation Act.
Over time, the accumulation of explanatory memoranda documenting such reasoning
could provide Parliament with an even stronger assurance about the consistency
and soundness of executive decision-making in selecting the mechanism by which
editorial changes, including error corrections, are made.
This information could usefully contribute to an evidence
base for evaluating the operation of section 15V of the Legislation Act. This may help inform the statutory
review of the Legislation Act, which is
required to commence in 2021.[95]
It may also help inform the Parliament’s future consideration of any proposed
amendments to Chapter 2 of the Legislation Act,
which may arise from, or independently to, the statutory review.
Concluding comments
Statute law revision Bills are an established feature of
Commonwealth legislative practice. They contribute to the continuous
improvement of the accuracy and useability of Commonwealth legislation.
All of the measures in the Bill appear to be
consistent with established legal policy requirements governing the use of
statute law revision Bills, including the expectation that such Bills should only
contain measures that do not change the legal substance or effect of the
provisions they propose to amend.
In particular, the error correction measures contained in
the Bill appear to go no further than giving explicit effect to the settled
approach to interpreting provisions which contain obvious drafting errors, in
accordance with general principles of statutory interpretation.[96]
There is, however, one relatively minor issue that could
withstand improvement. The evidently formulaic approach taken to the drafting of
explanatory memoranda accompanying statute law revision Bills could usefully be
updated to reflect the commencement of the 2015 ‘framework amendments’ to the Legislation
Act.
It would be useful if future explanatory memoranda could indicate the reasons
that the particular editorial changes proposed in the Bill (including error
correction measures) were considered appropriate for inclusion in a statute law
revision Bill, rather than being dealt with under Chapter 2 of the Legislation Act.
[1]. Schedules
1–3.
[2]. Schedules
4–5.
[3]. Explanatory
Memorandum, Statute Law Revision (Spring 2016) Bill 2016, p. 2.
[4]. Ibid.,
p. 4. The term ‘slip rule’ does not appear to be recognised formally by this
name, under statute or at common law, as a discrete rule or principle of
statutory interpretation with respect to the correction of apparent errors in
the text of legislation. However, as two leading commentators have observed,
courts have applied the general principles of statutory interpretation to
‘correct’ obvious printing and drafting errors in provisions, in that they have
been prepared to read such provisions in their correct form. (In particular,
courts have applied the
so-called ‘golden rule’ of interpretation under which the literal meaning of
words used in a provision can be modified in order to avoid absurdity; or by
taking a purposive approach to the interpretation of the provision, and
preferring a meaning that best achieves the purpose or object of an Act, as is
reflected in section 15AA of the Acts Interpretation Act 1901.) See: DC
Pearce and RS Geddes, Statutory Interpretation
in Australia, 8th edn., LexisNexis,
North Ryde, 2014, pp. 64-65 at paragraph [2.28]. Accordingly, the so-called
‘slip rule’ may reasonably be understood as a generic label that is used
to refer to these general interpretive principles as they have been applied to
construe provisions that contain apparent drafting or printing errors.
[5]. Parliament
of Australia, ‘Statute
Law Revision Bill (No. 2) 2016 homepage’, Australian Parliament website.
[6]. Parliament
of Australia, ‘Statute
Law Revision Bill (No. 3) 2016 homepage’, Australian Parliament website.
[7]. Parliament
of Australia, ‘Statute
Law Revision Bill (No. 2) 2016 homepage’, op. cit. The Library published
the following Bills Digest: C Petrie, Statute Law Revision Bill (No. 2) 2016, Bills digest, 105, 2015-16, Parliamentary Library, Canberra,
2016. (Note that the one difference between the No. 2 Bill and the present Bill
is that the No. 2 Bill contained an additional measure, in Schedule 1, item 31.
This sought to correct a numbering error in a note to subsection 65(1) of the Migration
Act 1958. This measure was included in a previous Bill, the Statute Law Revision Bill (No. 3) 2015,
which was enacted as the Statute
Law Revision Act (No. 1) 2016, per Schedule 1,
item 22.)
[8]. Parliament
of Australia, ‘Statute
Law Revision Bill (No. 3) 2016 homepage’, Australian Parliament website.
[9]. House of Representatives, Standing Orders, Department of the
House of Representatives, Canberra, 26 March 2015, chapter 2, p. 13.
[10]. BE
Wright and IC Harris (eds.), House of Representatives practice,
6th edn., Department of the House of Representatives, Canberra, 2012, chapter
7, p. 220 (footnotes omitted).
[11]. Parliament
of Australia, ‘Statute
Law Revision Bill 2016 homepage’, Australian Parliament website.
[12]. Parliament
of Australia, ‘Statute
Update Bill 2016 homepage’, Australian Parliament website.
[13]. Parliament
of Australia, ‘Statute
Law Revision Bill 2016 homepage’, op. cit.; M Turnbull, ‘Statute Law Revision Bill 2016: first reading’, House of Representatives, Debates, 30 August 2016, p. 11.
[14]. Parliament
of Australia, ‘Statute
Update Bill 2016 homepage’, Australian Parliament website.
[15]. Parliament
of Australia, Statute Update Bill 2016 homepage,
Australian Parliament website. (The Library did not publish a Bills Digest
prior to the prorogation of the 44th Parliament. A separate Bills Digest will
be published for the Bill as introduced to the 45th Parliament.)
[16]. Explanatory Memorandum, Statute Update
Bill 2016, p. 1.
[17]. Ibid.
[18]. Department
of the Prime Minister and Cabinet (DPMC), Legislation
handbook, 4th edn., DPMC, Canberra, 1999, p. 24.
See also: Pearce and Geddes, Statutory Interpretation in Australia,
op. cit., p. 27 at paragraph [1.24] and pp. 340–341 at paragraph
[7.25].
[19]. Further
information about the history of statute law revision legislation, including an
historical list of all such Acts from 1934-2014, is provided in J Murphy, Statute
Law Revision Bill (No 2) 2014, Bills digest, 48, 2014-15, Parliamentary
Library, Canberra, 2014.
[20]. J
Latham, ‘Second
reading speech: Statute Law Revision Bill 1934’, House of Representatives, Debates,
2 August 1934, pp. 1073–76.
[21]. Some
recent examples of such comments by members of the Government and Opposition
during the 45th, 44th and 43rd Parliaments include: G Hunt, ‘Second
reading speech: Statute Law Revision (Spring 2016) Bill 2016’, House of
Representatives, Debates, 1 September 2016, p. 19; C Porter, ‘Second
reading speech: Statute Law Revision Bill (No 2) 2015’, House of
Representatives, Debates, 18 March 2015, p. 2707; N Roxon, ‘Second
reading speech: Statute Law Revision Bill 2012’, House of Representatives, Debates,
15 August 2012, p. 1; and
M Keenan, ‘Second
reading speech: Statute Law Revision Bill 2012’, House of Representatives, Debates,
22 August 2012, p. 79.
[22]. DPMC,
Legislation handbook, op. cit., p. 24.
[23]. Pearce
and Geddes, Statutory Interpretation in Australia, op. cit.,
p. 341 at paragraph [7.25].
[24]. Ibid.
[25]. Ibid.
[26]. DPMC,
Legislation handbook, op. cit., p. 24.
[27]. The
FRL (accessible at Federal Register
of Legislation) is established under section 15A of the Legislation Act
2003. It is a central repository of all registered Acts, legislative
instruments and notifiable instruments and other relevant documents and
information (such as explanatory memoranda). It is maintained by the First
Parliamentary Counsel (FPC) under Part 1, Division 2 of the Legislation Act.
(The role of FPC is explained further below.)
[28]. Petrie,
Statute Law Revision Bill (No 2) 2016, Bills digest, op. cit.,
p. 2.
[29]. OPC
is an independent statutory agency responsible for drafting proposed
Commonwealth laws and subordinate legislation, and performing related functions
including publication and gazettal. OPC is established under, and its core
functions are prescribed by, the Parliamentary Counsel
Act 1970. It is headed by the First Parliamentary Counsel (FPC) who is
appointed by the Governor-General.
[30]. DPMC,
Legislation handbook, op. cit., p. 24. See also: The Office of
Parliamentary Counsel (OPC), Drafting
direction no. 4.4—changes using FPC's editorial powers and statute law revision
amendments, document release 2.0, reissued 29 February 2016, pp. 4–11.
[31]. Ibid.
[32]. DPMC,
Legislation handbook, op. cit., p. 24; OPC, Drafting Direction No.
4.4, op cit., pp. 7–8.
[33]. DPMC,
Legislation handbook, op. cit., pp. 23–24.
[34]. A
‘compilation’ of an Act is relevantly defined in section 4 of the Legislation
Act as a document showing the text of an Act as amended or modified and in
force on a day stated in the document. In other words, a compilation is a point
in time collation of an Act as it was originally enacted by a ‘principal Act’,
and any amendments made to its provisions over time by an ‘amending Act’ such
as repealing and substituting particular provisions or parts of provisions.
(The terms ‘principal Act’ and ‘amending Act’ are defined in section 11B of the
Acts
Interpretation Act 1901. Section 11B further provides that every
amending Act must be construed with the principal Act as part of the principal
Act.)
[35]. Legislation Act
2003, Chapter 2, Part 2, Division 3, inserted by the Acts and Instruments (Framework Reform)
Act 2015. (Framework Reform Act).
See also: D. Spooner, Acts
and Instruments (Framework Reform) Bill 2014, Bills digest, 70,
2014-15, Parliamentary Library, Canberra, 2014.
[36]. Framework
Reform Act, section 2.
[37]. Legislation
Act, subsection 15V(1). (This provision also authorises FPC to make
editorial changes to legislative instruments and notifiable instruments.)
Subsection 15V(3) confers a corresponding power on FPC to make ‘presentational
changes’ to an Act or instrument, being changes which affect the format,
layout, printing style or any other presentational aspect of the Act or
instrument.
[38]. Legislation
Act, subsection 15V(2). (This provision also covers editorial changes
to legislative and notifiable instruments.) Subsection 15V(4) imposes a
corresponding condition on the exercise of the power under subsection 15V(3) to
make presentational changes.
[39]. Legislation
Act, subsection 15V(6). (Note that subsection 15V(7) provides a
limited exception for editorial changes which deal with savings, transitional
and validation provisions, or consequential matters.)
[40]. Legislation
Act, subsection 15X(2).
[41]. Legislation
Act, paragraph 15X(2)(p) and subsection 15X(4).
[42]. Legislation
Act, section 15W.
[43]. Legislation
Act, paragraph 15P(1)(b). Notices of editorial changes to a particular
Act are typically included in the endnotes to each compilation, and OPC
publishes six-monthly Editorial Changes Reports, which provide consolidated
information about all editorial changes made in the relevant period: Federal
Register of Legislation (FRL), ‘Editorial
changes reports’, FRL website.
[44]. Senate
Standing Committee for the Scrutiny of Bills, Report,
1, 2015, The Senate, 11 February 2015, p. 18 (quoting correspondence
from the Attorney-General dated 19 January 2015). See also: OPC, Drafting
direction no. 4.4, op. cit., p. 6
(“FPC will report each year on the use of the FPC's editorial powers in the
annual report for the Office of Parliamentary Counsel”.)
[45]. Senate
Standing Committee for the Scrutiny of Bills, First report of 2015, op
cit., p. 13 (quoting correspondence from the Attorney-General dated 19
January 2015).
[46]. Explanatory
Memorandum, Acts and Instruments (Framework Reform) Bill 2014, p. 46.
[47]. Senate
Standing Committee for the Scrutiny of Bills, First report of 2015, op.
cit., p. 17.
[48]. OPC,
Drafting direction no. 4.4, op. cit., p. 3.
[49]. Ibid.,
p. 3.
[50]. Ibid.,
pp. 3–4.
[51]. Ibid.,
p. 4.
[52]. Ibid.
[53]. Ibid.,
pp. 4–6.
[54]. Ibid.,
p. 5.
[55]. Senate
Standing Committee on the Selection of Bills, Report,
5, 2016, The Senate, 1 September 2016.
[56]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 5, 2016, The Senate, 3 May 2016, pp. 15–16.
[57]. Explanatory
Memorandum, Statute Law Revision (Spring 2016) Bill 2016, op. cit., p. 2.
[58]. The
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the Bill.
[59]. Explanatory
Memorandum, Statute Law Revision (Spring 2016) Bill 2016, op. cit., p. 3.
[60]. Parliamentary
Joint Committee on Human Rights (PJCHR), Thirty
Seventh Report of 44th Parliament, 2 May 2016, p. 2; and
PJCHR, Thirty
Eighth Report of 44th Parliament, 3 May 2016, p. 1.
[61]. These
are: Aviation Transport Security Act 2004 (item 1); Bankruptcy Act
1966 (item 2); Biosecurity Act 2015 (items 3-9); Child Support
(Registration and Collection) Act 1988 (item 10); Civil Aviation Act
1988 (items 11-12); Classification (Publications, Films and Computer
Games) Act 1995 (item 13); Crimes Act 1914 (items 14-15); Customs
Act 1901 (items 16-17); Excise Act 1901 (items 18-26); Fair Work
Act 2009 (item 27); Family Law Act 1975 (item 28); International
Arbitration Act 1974 (item 29); Migration Act 1958 (items 30-32); Remuneration
and Allowances Act 1990 (item 33); and My Health Records Act 2012 (item
34).
[62]. Items
3-8, 11.
[63]. Item
1, 30, 34.
[64]. Items
2, 9, 10, 14-17, 19-29, 31-33.
[65]. Items
13, 21, 23.
[66]. This provision confers a power on authorised officials to arrest
persons without warrant on suspicion of certain offences against the Excise Act,
relating to the unlawful manufacture, receipt or possession of excisable goods,
or being found without reasonable excuse on premises upon which excisable goods
are being illegally manufactured.
[67]. Explanatory
Memorandum, Statute Law Revision (Spring 2016) Bill 2016, op. cit., p. 8.
[68]. Polyukhovich
v Commonwealth (1991) 172 CLR 501; [1991]
HCA 32.
[69]. Clause
2 (per item 2 in column 1 of the table).
[70]. Explanatory
Memorandum, Statute Law Revision (Spring 2016) Bill 2016, op. cit., p. 4.
[71]. OPC,
Drafting direction no. 4.4, op. cit., pp. 9–10.
[72]. These
are: Australian Radiation Protection and Nuclear Safety Amendment Act 2015 (item
1); Indirect Tax Laws Amendment (Assessment) Act 2012 (item 2); Migration
Amendment (Temporary Sponsored Visas) Act 2013 (item 3); Tax Laws
Amendment (Confidentiality of Taxpayer Information) Act 2010 (item 4).
[73]. Item
1.
[74]. Items
2, 4.
[75]. Item
3.
[76]. Section
2 (per items 3-6 in column 1 of the table).
[77]. OPC,
Drafting direction no. 4.4, op. cit., p. 10.
[78]. This
Act establishes a ‘public lending right scheme’ for the making of payments to
Australian creators and publishers of books in Australia, in recognition of
their loss of income from their books being made available for loan from, or
for use in, public lending libraries in Australia (per section 2A).
[79]. Subsection
19B(2) is a type of provision that is referred to colloquially as a ‘Henry VIII
clause’ in that it authorises the amendment of a provision of a primary Act.
[80]. These
circumstances are set out in subsection 19B(1) of the Acts Interpretation
Act.
[81]. Schedule
3, Part 1, items 1-3. (In particular, these measures propose to amend paragraph
9(1)(e) of the Public Lending Right Act, which prescribes the membership
of a ‘public lending right committee’ which determines the eligibility of
claimants and approves payments under the scheme. Currently, paragraph 9(1)(e)
provides that the Committee must include a member who is an officer of the
Attorney-General’s Department, as nominated by the Attorney-General. The
amendments in Part 1 of Schedule 3 to the Bill reflect the Administrative
Arrangements Order of 30 September 2015, which transferred portfolio
responsibility for copyright to the Communications Minister (at p. 9).
[82]. Acts
Interpretation (Substituted References--Section 19BA) Amendment Order 2015 (No
1), Schedule 1, amending items 2 and 3 (per item 3 in column 1 of each
table). This order amended the Acts Interpretation
(Substituted References--Section 19BA) Order 2004, Schedule 1, Part 5 and
Schedule 2, Part 3 (per item 3 in column 1 of each table).
[83]. For
completeness, the identification of the relevant responsible Minister and
department via a reference to a particular statute (in this case, the Copyright
Act) is consistent with Commonwealth drafting practice with respect to
references to Ministers. See: OPC, Drafting
direction no. 2.2—use of various expressions in draft legislation,
document release 5.5, reissued May 2016, pp. 15–16.
[84]. Clause
2 (per item 7 in column 1 of the table).
[85]. Item
1. (Note that section 7 of the Acts Interpretation
Act 1901 (AIA) provides that the repeal of the amending
provisions does not affect the amendment it made to the principal Act.)
[86]. Items
2-4.
[87]. Item
1.
[88]. In
effect, item 2 of Schedule 5 to the Bill applies an equivalent protection to
that in section 7 of the AIA to the application, saving and transitional
provisions in the FMRDS (TCP) Act that did not amend a principal Act and
are therefore not covered by section 7 of the AIA.
[89]. Schedule
5 of the present Bill is one such example.
[90]. For
example, the Amending
Acts 1901 to 1969 Repeal Act 2014; Amending Acts 1970
to 1979 Repeal Act 2015; Amending Acts 1980
to 1989 Repeal Act; and Amending Acts 1990
to 1999 Repeal Act 2016.
[91]. Legislation
Act, Chapter 3, Part 3, Division 1.
[92]. Legislation Act 2001
(ACT), section 89.
[93]. Acts
Interpretation Act 1954 (Qld), section 22C.
[94]. OPC, Editorial changes reports no 1 and no 2,
op cit. These reports record 76 corrections to a total of 40 compilations (from
5 March to 11 August 2016). Such changes relate to matters including:
changes to punctuation, giving effect to misdescribed amendments as intended,
updating cross-references, renumbering provisions, removing redundant text,
correcting typographical errors and changing spelling. The highest proportion
of corrections relate to misdescribed amendments, punctuation, renumbering and
typographical errors.
[95]. Legislation
Act, section 59. (This section provides that the Attorney-General must
appoint persons to a body to review the operation of the Act during the three
months starting on the fifth anniversary of the amendments enacted by the Framework
Reform Act.)
[96]. As
explained above, a court would likely read a provision containing an apparent
drafting or printing error in its correct form, in order to avoid a manifestly
absurd interpretation, or to give effect to the interpretation that best
achieves the purpose or object of the Act.
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